A recent trend has emerged in which H-1B workers laid off from their U.S. jobs are being issued Notices to Appear (NTAs), initiating formal deportation proceedings. USCIS (United States Citizenship and Immigration Services) is issuing NTAs even to employees who remain within the 60-day post-termination grace period permitted under current immigration regulations. This unexpected development is causing significant distress within the non-immigrant worker community, particularly among those actively seeking new employment or preparing status-change applications.
As per 8 CFR § 214.1(l)(2), when an H-1B worker’s employment is terminated before the end of the approved petition period, the individual is generally granted a 60-day discretionary grace period. While the rule allowing 60 days of flexibility after a layoff technically remains in place, its practical reliability is now in question.
Key aspects of this regulation are summarized below.
- A discretionary 60-day grace period is available if employment ends for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN visa holders.
- The individual (and their dependents) is not considered to have failed to maintain status, provided it is for the shorter of 60 consecutive days or until the expiration of the I-94, and the period may be applied only once per authorized validity period.
- USCIS may shorten or eliminate this grace period at its discretion.
- Employment is not permitted during the grace period unless specifically authorized under law.
Historically, during the grace period, the worker would:
- Find a new employer willing to file a timely H-1B transfer petition;
- File for a change of status (e.g., to B-2 visitor status);
- Or make arrangements to leave the United States.
Foreign workers have historically relied upon this provision as a protection mechanism during job transitions.
Despite being within this 60-day grace window, an increasing number of laid-off H-1B workers are reportedly receiving NTAs. These notices initiate removal proceedings and require recipients to appear before an immigration judge.
Possible Causes and DHS Discretion
While there has been no formal change to the policy, immigration attorneys speculate that the Department of Homeland Security (DHS) is exercising its authority to override the grace period. The regulation allows DHS to “shorten or eliminate” the grace period, although such discretion has been rarely applied until now.
In many reported cases:
- The workers were well within the 60-day period.
- Some had pending petitions in which new employers had timely filed transfer petitions, or the individuals had filed change-of-status applications within the grace period.
- It appears that the NTAs are frequently sent shortly after the former employer notifies USCIS of the H-1B withdrawal.
- Termination of employment is not the only reason an individual could receive an NTA. There could be other aspects of an individual’s immigration or criminal history that could trigger an NTA, even if they have not lost their job.
Some believe that this shift may be the result of:
- Automated enforcement actions triggered by employer withdrawal notices
- Internal policy shifts at USCIS or ICE (Immigration and Customs Enforcement)
- Increased scrutiny following the 2022 NTA expansion guidance
Legal and Practical Implications
The unexpected NTAs could have serious consequences, such as:
- Workers with pending H-1B transfer petitions or B-2 change-of-status applications could face removal proceedings, even if they have complied with all applicable guidelines.
- This could lead to uncertainty regarding reliance on the 60-day grace period.
- It could also increase legal costs and place enormous psychological stress on employees soon after they lose their jobs.
Tips for Employees
If you know you are going to lose your job, work with your current employer to determine how long you can remain on their payroll, giving you extra time to look for new opportunities. Although not guaranteed, it can be beneficial if your employer does not withdraw the H-1B petition they filed for you. This may be difficult to negotiate, but you should at least try, as this could help reduce the risk of receiving a Notice to Appear (NTA).
If you have lost your job, keep the following in mind and take necessary steps:
- Act Quickly: Find a new sponsor, change visa status, or leave the U.S. within the grace period or I-94 expiry.
- H-1B Transfer: You may start work after filing under AC21 portability, but starting before approval is risky. Employers may use premium processing to reduce uncertainty.
- Keep Records: Maintain all employment and USCIS documents, and track critical dates.
- If Issued an NTA: Seek legal help immediately, avoid travel while it’s pending, and protect your immigration status.